Excerpt: ...ndants' conversion/theft of Plaintiffs' corporate assets (i.e., Defendants' alleged theft of funds from Plaintiffs' corporate bank accounts). Defendants contend the dispute centers on Plaintiffs' violation of labor and employment laws (i.e., alleged failure to pay its Californiabased employees' wages). In 2018, shortly after filing the Complaint in this case, Plaintiffs filed their first application for a writ of attachment, seeking to attach pro...

Excerpt: ...lace of business in Los Angeles, (2) the parties' Subcontract was to be performed in Los Angeles County, and (3) Joel Parker executed the parties' Subcontract and Personal Guarantee in Los Angeles. (MPA, p.1.) Plaintiff contends that venue is proper in San Mateo County pursuant to the following provision in the parties' Subcontract: “SUBCONTRACTOR agrees that this Agreement is to be executed in San Mateo County, California and that venue for an...

Excerpt: ...r hearing,” “that the plaintiff resides out of the state . . . and that there is a reasonable possibility that the moving defendant will obtain judgment in the action . . . .” Here, Plaintiff concedes that he resides out‐of‐state. (Compl., ¶ 7.) Plaintiff's ownership of real property and bank accounts does not fulfill the “reside” requirement of Code of Civil Procedure section 1030. There is also a reasonable possibility of Defenda...

Excerpt: ...ust (Plaintiffs) unopposed Motion for Judgment Pursuant to Stipulation and Order, is GRANTED IN PART and DENIED IN PART. (Code Civ. Proc. Sec. 664.6; see also Stip. & Order filed 11‐ 19‐20.) Plaintiffs' motion for entry of judgment for possession is GRANTED. Because Defendant is not a “tenant” as defined by the COVID‐19 Tenant Relief Act of 2020 (Tenant Relief Act) (Code Civ. Proc., § 1179.02, subd. (h)) and because this action does no...

Excerpt: ...endant's Demurrer to the First Cause of Action for Breach of Contract is SUSTAINED WITH LEAVE TO AMEND. The elements of a claim for breach of contract are: (1) existence of the contract, (2) plaintiff's performance or excuse for nonperformance of the contract, (3) defendant's breach, and (4) plaintiff's damages as a result of the breach. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.) If the action is based on a writt...

Excerpt: ...intiff does not allege the existence of any contract between Plaintiff and Hollyvale. Plaintiff has only alleged a contractual relationship with the parties to the loan and the deed of trust. Hollyvale, however, is not a party to either of those contacts. Plaintiff argues that Hollyvale is a necessary party because the Complaint seeks equitable relief that would require Hollyvale to reconvey the property to Plaintiff. But the fact that Plaintiff ...

Excerpt: ...s contained within the documents. Defendant/Cross‐Complainant Cullens' Motion to Enforce Settlement is GRANTED. Plaintiff/Cross‐Defendant Jeromes' Motion to Enforce Settlement is DENIED. Defendant/Cross‐Complainant Cullens' request for attorney's fees is DENIED. The Court has jurisdiction to enforce the Settlement Agreement pursuant to Cal. Code of Civ. Proc. § 664.6, item 7 of the Settlement Agreement, and the March 5, 2020 Order Retainin...

Excerpt: ...or Summary Judgment or in the alternative, Summary Adjudication, is ruled on as follows: (1) As a threshold matter, Defendants' Notice of Motion indicate that this Motion is brought to the First, Second, Third, Fifth, Sixth and Seventh Causes of Action (“COA”) based on Plaintiff's failure to produce admissible evidence in support of these COA. (See Defendants' Notice of Motion, Issues 1‐3, and 5‐7.) A defendant moving for summary judgment...

Excerpt: ...so primarily in the interests of judicial economy and efficiency, minimization of expense, and avoidance of potentially inconsistent rulings. Having reviewed the parties' briefing, given the still ongoing Delaware court proceeding, the Court finds that the rationale and policy concerns underlying the 3‐2‐20 stay Order still apply, and thus declines to lift the stay at this time. Plaintiffs Blum et. al. argue the Delaware lawsuit is “essenti...

Excerpt: ...s well as a code‐compliant separate statement of material facts. Plaintiff appears not to have filed any evidence in support of the opposition, in violation of CRC 3.1350(3). The clerk's office has confirmed that it is not in receipt of any of Plaintiff's evidence. Further, the Court notes that Plaintiff's separate statement is 515 pages. The separate statement sets forth pages of narrative in response to each of Defendant's undisputed facts an...

Excerpt: ...§ 437c. The parties agree that Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny apply to the facts, but disagree as to the result. In general terms, the California Supreme Court's decision in Privette limits the liability of the hirer of an independent contractor for on‐the‐job injuries sustained by the independent contractor's employees. Id. As the Supreme Court explained in subsequent case law, however, the Privette doctrine...

Excerpt: ...tively, Summary Adjudication, to the Complaint of Plaintiffs Sherlene and Lawrence Wong is ruled on as follows: Stillwater has brought this motion for summary judgment on two grounds: (1) that there was no direct physical loss to property as described in Coverage C of the policy; and (2) any loss was not covered by one of the sixteen perils covered under the policy. Defendants then claim that the other causes of action fail because they depend on...

Excerpt: ...and the forum state to justify imposition of personal jurisdiction. Elkman v. National States Ins. Co. (2009) 173 CA4th 1305, 1313. In this case, Plaintiffs contend the Court has specific personal jurisdiction over Defendants Hart and HME Legal because Defendants (1) accepted payment out of funds administered in California; (2) intentionally offered their services to Plaintiffs in California; and (3) proposed California dispute resolution in a te...

Excerpt: ... Darrow (“Plaintiff”) and Defendant providing that any action arising out of the agreement be brought in Florida. (See Barnes Decl., Exh. A, ¶ 18.f.) A mandatory forum selection clause is valid and enforceable absent a showing that enforcement of such a clause would be unreasonable. (CQL Original Products, Inc. v. National Hockey League Players' Assn. (1995) 39 Cal.App.4th 1347, 1353–1354.) The plaintiff bears the burden of demonstrating t...

Excerpt: ...ch the demurrer was sustained. (See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [holding that plaintiff may not amend complaint to add a new cause of action without having obtained permission from the court to do so].) Here, Plaintiff's Second Amended Complaint (SAC) alleges several new causes of action and a new defendant that were not included in his First Amended Complaint (FAC). Specifically, Plaintiff alleges new cause...

Excerpt: ...3, plus late fees and loan costs of $1,432.81. Plaintiff's Motion for Summary Judgment is DENIED. Plaintiff contends that it is entitled to summary judgment or, in the alternative, summary adjudication on its breach of contract claims. As explained below, Plaintiff is entitled to summary adjudication on its breach of contract claims but not summary judgment. The essential elements of a claim for breach of contract, whether express or implied, are...

Excerpt: ...Act (CLRA) is SUSTAINED WITHOUT LEAVE TO AMEND. Defendant's demurrer to the seventh cause of action for violation of the Unfair Competition Law (UCL) and eighth cause of action for violation of the False Advertising Law (FAL) are SUSTAINED WITH LEAVE TO AMEND. Sixth Cause of Action for Violation of the CLRA In sustaining the demurrer to the cause of action for violation of the CLRA in the FAC, the Court found that “Plaintiff has not alleged com...

Excerpt: ... other responsive pleading on or before five days after service upon him of the notice of entry of the order denying the motion to quash. In unlawful detainer actions, the filing of a motion to quash “extends the defendant's time to plead until five days after service upon him of the written notice of entry of an order denying his motion[.]” C.C.P. § 1167.4(b). Defendant filed a motion to quash on March 4, 2020. The Court denied the motion t...

Excerpt: ...2 Cal.App.4th 1234); Weil & Brown, Civil Procedure Before Trial ¶6:94‐¶6:96. Plaintiffs appearing pro per drafted and filed their Complaint on December 21, 2018, alleging claims for negligence and personal injuries arising from a vehicle collision on January 2, 2017. In the caption, Plaintiff identified “AAA Insurance (American Automobile Association)” as Defendant. Throughout the body of the Complaint, Plaintiffs addressed their negligen...

Excerpt: ...e answer. Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1379. “The grounds for a motion for judgment on the pleadings must appear from the face of the complaint or from a matter of which the court may take judicial notice.” RichardsonTunnell v. Schools Ins. Program for Employees (2007) 157 Cal.App.4th 1056, 1061 (disapproved on other grounds by Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798). Here, Plaintiff...

Excerpt: ...t notes that he threw the papers away without looking at them and asserts that “[t]his is not outside the realm of normal behavior for a small business owner who is inundated with paperwork and has limited time to response to administrative issues.” (Id., at p.6.) Defendant bears the burden of showing that he is entitled to relief pursuant to Code of Civil Procedure section 473, subdivision (b). In the absence of an attorney affidavit of faul...

Excerpt: ... to Defendants' Merger Agreement. Further, the only portion of the Agreement that is relevant to Defendants' demurrer is a brief passage on page 22 of the Merger Agreement; the remainder of the Agreement's contents are not relevant to the demurrer for which Defendants cite the Agreement. For these reasons, the Court finds that (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding inter...

Excerpt: ...(See Code of Civ. Proc. § 395.5.) “In tort, ‘liability arises where the injury occurs….'” (Mission Imports, Inc. v. Sup.Ct. (Monterey Bay Co., Inc.) (1982) 31 Cal.3d 921, 929.) Injury refers to a wrongful invasion of rights. (Black Diamond Asphalt, Inc. v. Sup. Ct. (2003) 109 Cal.App.4th 166, 172.) The burden is on Defendant to overcome the presumption that the venue selected by Plaintiffs Yolanda S. Recania and Vernon Recania (“Plaint...

Excerpt: ...oc. § 430.10(e). On 9‐11‐20, the Court granted Defendants' Motion for Judgment on the Pleadings (MJOP) with leave to amend, directed to the original Complaint's asserted causes of action for (1) actual fraudulent transfer, (2) constructive fraudulent transfer, (3) common law fraudulent transfer, (4) declaratory relief, and (5) accounting. Plaintiff thereafter filed the FAC, reasserting the same first four causes of action, but dropping the a...

Excerpt: ...tiff paid $15,000 against a surety bond it issued to Defendant. Plaintiff contends it is entitled to reimbursement of the $15,000 payment on the grounds that it made payment out of the surety bond in good faith, that Defendant waived his right to contest the payment when he failed to specifically instruct Plaintiff not to make payment, and that Plaintiff has a statutory right to reimbursement under Civil Code section 2847. However, the pleadings ...

Excerpt: ... Concealment, Breach of Fiduciary Duty, Negligence, and Civil Conspiracy.  This case involves a number of related corporate entities in both China and California, and alleges fraud and theft of corporate assets. As alleged, Plaintiff China New Era Group Corporation (CNEGC), based in Beijing, was engaged in various business ventures world‐wide, and in 2015, CNEGC entered into agreements with third parties to pursue a real estate development p...

Excerpt: ... wrongful eviction, and other related claims, arising out of an oral subletting of garage unit in East Palo Alto that allegedly was un‐permitted and unlawfully converted to a small rental unit. The Causes of Action asserted are: 1. Tenant Relocation Assistance, Violation of CA Health & Safety Code §§ 17975‐17975.2 2. Tenant Relocation Assistance, Violation of East Palo Alto Municipal Code §§ 14.02.130, 14.02.150, 14.06.080 3. Tenant Haras...

Excerpt: ...e negligence action on a Judicial Council Form Complaint, and appears to arise out of a dispute over Defendants' August 22, 2020 refusal to provide security tape footage to Plaintiff of an altercation Plaintiff had with a third party outside Defendants' hotel property. Defendants here demur to the Complaint as uncertain and failing to state facts sufficient to constitute a cause of action.  In his confusing pleadings, Plaintiff seems to claim ...

Excerpt: ...he Court. Defendant Daniel Brian Schatt's unopposed Demurrer to Plaintiff James Alexander's First Amended Complaint, filed October 15, 2020, (“FAC”) is SUSTAINED WITH LEAVE TO AMEND for the following reasons: The demurrer to the first cause of action for declaratory relief is SUSTAINED WITH LEAVE TO AMEND. This claim is predicated on Plaintiff's other causes of action. Because the FAC fails to state facts sufficient to constitute a cause of a...

Excerpt: .... Plaintiff's opposition is long on argument, but does not indicate what specific allegations in the SAC describe extrinsic fraud, and the Court has not located any. The allegations of wrongdoing describe, at most, intrinsic fraud. It is Plaintiff's burden to offer a showing that he can amend his pleading to state a cause of action. Plaintiff's Opposition makes no showing of possible amendment. The motion is DENIED as to the third through sixth c...

Excerpt: ... Fraudulent Transfer based on failure to allege facts sufficient to support this claim against it. Defendant asserts that the allegations show it was not a transferor or transferee of any alleged fraudulent transfer, and therefore cannot be liable for conspiracy to commit fraudulent transfer. Defendant argues that the controlling authority here is Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503 (“Applied Equipment”). ...

Excerpt: ...ion for breach of contract, the motion is DENIED. As with a demurrer, a motion for judgment on the pleadings “does not lie to a part of a cause of action.” Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163. Here, Plaintiff's Second Cause of Action alleges multiple breaches of the 2017 Operating Agreement, not all of which appear to hinge on the parties' dispute regarding LLC ownership percentages. Complaint, ¶¶82‐92. The Second Cau...

Excerpt: ...,000 in American Express Company. Plaintiff American Express National Bank's unopposed “Motion for Order Vacating Dismissal and Entering Judgment against Defendant,” filed 10‐2‐ 20, is GRANTED. Code Civ. Proc. § 664.6. Per the parties' “Stipulation for Conditional Entry of Judgment” filed 10‐22‐18 (signed 10‐19‐ 18), the parties settled their dispute and Defendants agreed to make a series of payments to Plaintiff per a paymen...

Excerpt: ...Cal.App.3d 703, 710. Where discovery is required to oppose a jurisdictional challenge, a defendant may conduct that discovery without being considered to make a general appearance in the action. Factor Health Management, LLC v. Superior Court (2005) 132 Cal.App.4th 246. Specially Appearing Defendant may therefore participate in jurisdictional discovery without waiving their jurisdictional arguments. Plaintiff is authorized to conduct jurisdiction...

Excerpt: ...se of Action for Declaratory Relief, is GRANTED, for the reasons stated below. Both the Fifth and Sixth Causes of Action hinge the same question—namely, given the parties' 2013 settlement agreement, the resolution of the parties' prior lawsuit (Case No. CIV522693), and Defendants Fair et. al.'s recent payment to Plaintiffs J.B.B. et. al. of $475,424.12 to satisfy the Judgment in CIV522693, are Plaintiffs J.B.B. et. al. still investors in/equity...

Excerpt: ...s that Sunstone's request somehow envisions some of the litigation proceeding during arbitration. By the plain language of Sunstone's motion that is not the relief it seeks. The initial complaint and the cross‐complaint encompass two separate agreements. One is a construction contract between an LLC owner, Stillcreek, and a contractor, Sunstone, which contains an agreement to arbitrate. The second is a guaranty contract between individual defen...

Excerpt: ...tiff's Request for Judicial Notice of the following documents filed in CLJ 499923 is GRANTED: 1) Summons 2) Proof of Service of Summons 3) The Complaint 4) The Request for Entry of Judgment 5) The Judgment The Motion for Vacating the Renewal of Judgment is GRANTED. The Court agrees with Plaintiff's argument that the judgment is valid on its face, and under most circumstances extrinsic evidence would not be admissible in collateral attack. However...

Excerpt: ...ne provides a basis to grant the Motion for Summary Judgment. A defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Cal. Code of Civ. Proc. § 437c(p)(2). Once the defendant or cross‐defendant has met that burden, the burden shif...

Excerpt: ...ion for judicial determination of the privilege claim must be made within 30 days after the party received notice of the claim. [ C.C.P. section 2031.285(d)]. At issue here are two documents over which Defendants Edwin Blue and IRA Services, Inc. have asserted attorney‐client privilege and work product protection. On February 24, 2020, Defendants inadvertently produced the two documents as part of its production in response to Plaintiff's disco...

Excerpt: ...nt is proper only if it disposes of the entire lawsuit.” (All Towing Servs. LLC v. City of Orange (2013) 220 Cal. App. 4th 946, 954.) The present motion addresses only the counts for open book account, account stated, and breach of contract; the motion does not address the claims for money had and received (Complaint ¶ CC‐1(b)(1), goods sold and delivered (Id. ¶ CC‐1(b)(3)), money lent (Id. ¶ CC‐1(b)(4), or money paid at defendant's re...

Excerpt: ...ff's claims was made in good faith. Intero contends Plaintiff is unlikely to recover against it because: (1) Plaintiff is not entitled to a finder's fee because Intero did not receive any commission from the sale of the billboards; and (2) Plaintiff is not entitled to a finder's fee because he attempted to negotiate the real estate transaction, which requires a real estate license pursuant to California law. Defendant contends that Plaintiff's ap...

Excerpt: ...are OVERRULED. Defendants' Motion for Summary Adjudication is GRANTED pursuant to Cal. Code of Civ. Proc. § 437c(f)(1) with respect to Issue Nos. 3, 4, 6, 7, 8, and 9. The motion is DENIED with respect to Issue Nos. 1, 2, and 5. Regarding the claim for fraud/concealment, Issue No. 1; “[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact; (2) the defenda...

Excerpt: ...ervice. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) However, the return of a registered process server establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return. (Evid. Code, § 647.) If this statutory presumption applies, then the defendant is required to produce evidence to overcome this presumption. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428.) In this...

Excerpt: ...m to file redacted copies of the following papers in support of their opposition to Defendant motion for summary judgment: (1) Declaration of David M. Rosenberg‐Wohl; (2) Evidence; (3) Request for Judicial Notice; and (4) Separate Statement. According to Plaintiffs, the records sought to be sealed contain portions of a deposition that is confidential pursuant to a protective order issued in a related federal action: In re: Pacific Fertility Cen...

Excerpt: ... vehicles are not insured by Landlord, manager or, if applicable, HOA, against loss or damage due to fire, theft, vandalism, rain, water, criminal or negligent acts of others, or any other cause. Tenant is advised to carry Tenant's own insurance (renter's insurance) to protect Tenant from any such loss or damage. Tenant shall comply with any requirement imposed on Tenant by Landlord's insurer to avoid: (1) an increase in Landlord's insurance prem...

Excerpt: ...action to enforce the terms of the Settlement Agreement is entitled to reasonable attorney's fees incurred in the enforcement action. Plaintiff is the prevailing party in an action to enforce the terms of the Settlement Agreement, and is therefore entitled to reasonable attorney's fees in the amount of $3,358.50. The fees claimed for the enforcement action are sufficiently documented and reasonable. Exhibit B of the Declaration of Steven J. Mehlm...

Excerpt: ...irst Amended Cross‐complaint, as irrelevant to this demurrer. The request for judicial notice of the First Amended Cross‐complaint in this action is DENIED as unnecessary. A. 5 th Cause of Action – Unjust Enrichment The demurrer is OVERRULED. FPT contends that SYMPHONY's decision to terminate its contracts with LOGIGEAR was based on LOGIGEAR's breaching the Settlement Agreement, and not by any act of FPT. The argument fails on demurrer beca...

Excerpt: ... are objecting to the remainder of the sentence. If they are, the objection is OVERRULED. Objection 2: SUSTAIN as to the bolded language “I presumed based on what I saw that he had crashed into us because he talking (sic) on his cell phone and not paying attention to the road on the basis of speculation. OVERULED as to the rest of the objection. Objection 3: SUSTAIN as to Plaintiffs' Exhibit N on the basis of hearsay, lack of foundation, lack o...

Excerpt: ...e attorney to use such skill, prudence and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence." (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.) Defendant asserts that the allegations are insufficient to support that she breached the duty...

Excerpt: ...orum. According to Defendants, this Court lacks specific personal jurisdiction because “Robison and his sole proprietorships are in North Carolina, there is no dispute. Plaintiffs arranged for product to be shipped there — and this litigation arose out of a dispute about that delivery.” MPA, p.6. Defendants, however, fail to acknowledge that Defendants, as well as Plaintiffs, were parties to an agreement to ship flooring product to North Ca...

Excerpt: ... take judicial notice of its own records. 3) DENIED as to the printout from the Oregon Secretary of State for an LLC named “Oregon Drying Technologies”, generated on 10/2/20. (Kirpes Decl., Exh. A) Although judicial notice may be taken of a certificate of corporate status under Ev. Code, §452(c) (See, Friends of Shingle Springs Interchange v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1483), the printout is not a certificate of corpora...

Excerpt: ... contend, first, that the allegations set forth at ¶¶ 40‐49 of the Hogans' Third Amended Cross‐Complaint, relating to the third cause of action for violation of Bus. & Prof. Code § 7031 asserted against Defendant JPM, must be stricken because the Hogans failed to seek leave to amend this cause of action. According to Defendants, “the Court's ruling granting the Hogans leave to correct the problems with [the Hogan's former fifth cause of ...

Excerpt: ...Proc. § 437c, subd. (c).) “Summary judgment is proper only if it disposes of the entire lawsuit.” (All Towing Servs. LLC v. City of Orange (2013) 220 Cal. App. 4th 946, 954.) The present motion addresses only the counts for open book account and account stated; the motion fails to address the claims for Goods sold and delivered (Complaint ¶ CC‐1(b)(3)) and credit extended (i.e., money paid at Defendant's request) (Id. ¶ CC‐1(b)(6)). Si...

Excerpt: ...e is GRANTED pursuant to Evidence Code § 452(d). Cross‐Defendant's Request for Judicial Notice is GRANTED pursuant to Evidence Code § 452(d). Judicial notice is taken of the documents' filing/recording, contents, and legal effect, but not the truth of allegations therein. Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, n. 7. Cross‐Complainants have standing to sue under the lease. The Lease and Guarantees relate to the same matters, are...

Excerpt: ...of the tenancy. In support, Defendants cite to Delta Imports, Inc. v. Municipal Court (1983) 146 Cal.App.3d 1033, 1036 (“Delta Imports”), which held that a motion to quash service of summons is the only method to challenge whether a complaint states a cause of action for unlawful detainer supporting a five‐day summons. However, Borsuk v. Appellate Division of the Superior Court (2015) 242 Cal.App.4th 607, 611‐ 617 (“Borsuk”), disagree...

Excerpt: ...is a breach of contract case involving Defendant's breach of the parties' “2015‐2016 Statement of Financial Responsibility.” See 4‐9‐18 First Amended Complaint, Ex. A; 10‐22‐20 Howard Decl., Ex. 3. The agreement contains an attorney's fees clause which provides that the prevailing party in an action to enforce the contract is entitled to recover attorney's fees and court costs. Id. at ¶7 (“Additional Terms of Agreement”). Plain...

Excerpt: ... action for intentional interference with prospective economic relations is SUSTAINED with leave to amend on the ground that the Complaint does not sufficiently allege an independent wrongful act. “An act is not independently wrongful merely because defendant acted with an improper motive. … [A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other de...

Excerpt: ...eo that there were only two legal rentable units on the property. Id., ¶ 30‐34. At the time Plaintiffs purchased the property, they believed there were three legal and permitted rental units on the property. Following their discovery in 2018, Plaintiffs commenced this suit against their agent, the sellers, and the listing agent. The moving Defendants (“Listing Broker”) demur to Plaintiffs' second, third, fourth, and fifth causes of action ...

Excerpt: ...sider and weigh the Tech‐Bilt factors … when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.” City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261. While Defendant Duff's motion is bare bones, it does provide sufficient information for the Court to conclude that the settlement is in good faith. Liab...

Excerpt: ...ocedure section 1005(b), which requires opposing papers to be filed and served at least nine court days before the hearing. November 11, 2020, Veteran's Day, was a legal holiday. However, despite this delay, Defendants timely filed and served their Reply. Therefore, the Court exercises its discretion to still consider Plaintiffs' Opposition, but reminds Plaintiffs in the future to timely file and serve their papers or else they may not be conside...

Excerpt: ... of the existence of judicial opinions and court documents, along with the truth of the results reached— in the documents such as orders, statements of decision, and judgments—but cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, n. 7 (citations omitted); Evidence Code § 452(d). T...

Excerpt: ...rom November 4, 2020, to November 19, 2020. Plaintiff had sufficient time to respond to Defendant's Opposition and no prejudice has been demonstrated. This Court exercises its discretion in determining whether to grant a motion for reclassification. Stern v. Superior Court (2003) 105 Cal.App.4th 223, 231. Since the initial time for defendant to respond to the complaint has passes (and Defendant has answered), this Court decides the motion pursuan...

Excerpt: ... on July 15, 2019. Defendant's counsel, Joseph Siguenza, has been an attorney in the law offices of Defendant for 29 years. Siguenza Decl., ¶¶ 1, 2. Mr. Siguenza signed the answer on behalf of Defendant. Plaintiff claims he discovered the conflict of interest in April of 2020 when discussing discovery responses with his counsel. On July 20, 2020, Plaintiff filed this motion to disqualify. Plaintiff contends defense counsel, Mr. Siguenza and his...

Excerpt: ...ration and Proposed Order. The court starts with the presumption that court records are open unless confidentiality is required by law. (See Cal. Court Rule 2.550(c).) A court may order that a record be filed under seal if it expressly finds facts establishing that: (1) there exists an overriding interest that overcomes the right of public access to the record; (2) the overriding interest supports sealing the record; (3) a substantial probability...

Excerpt: ... seventh and eighth causes of action with prejudice on September 23, 2020. Thus, Defendant's motion for summary judgment is moot as to those claims. First Cause of Action – Wrongful Constructive Termination As to the First Cause of Action for “wrongful constructive termination,” Plaintiff must show that he resigned as a result of intolerable working conditions, and that those working conditions violated public policy. (See CACI No. 2432.) D...

Excerpt: ...im of newly discovered evidence, Plaintiff notes that, just prior to the Court's ruling granting Dane's motion for summary judgment, Frederick Tate, a Target employee, testified at his deposition that Dane sent a representative to Target on a quarterly basis in 2016 to perform “preventative maintenance” on the smartKART shopping carts. According to Plaintiff, this evidence suggests that Dane did, in fact, have possession and control over the ...

Excerpt: ...k of Am., N.A. (2015) 243 Cal. App. 4th 1293, 1305–06 [tender not required when claim is based on allegations that Defendant foreclosed during time that plaintiff was seeking loan modification].) B. First Cause of Action (Wrongful Foreclosure) Demurrer to the first cause of action is sustained. An element of the claim for wrongful foreclosure is that the foreclosure sale occurred. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4t...

Excerpt: ...uires and Michael Mengarelli, and Notice of Motion and Motion to Enforce Settlement Agreement, all filed on March 11, 2020, is DENIED. A motion to seal records must include a declaration “containing facts” sufficient to justify the sealing. (CRC Rule. 2.551(a)(1); see also Rule 2.550(d) [court may grant motion only if it “expressly finds facts” establishing grounds justifying sealing. The present motion seeks to seal portions of documents...

Excerpt: ...to be made no later than 60 days after the completion of the record. Here the record was completed on May 4, 2020 when a response including only objections was provided to the deposition subpoena. This Motion was filed more than 60 days later on September 10, 2020. The Vogt declaration provides evidence that the Deponent represented that the lack of responsive documents was because of a need for more time to produce the documents. Defendants argu...

Excerpt: ...Plaintiff ancey sent and received documents to and from Defendant IRA Services' principals, including Defendant Edwin Blue and company counsel. During discovery in this case, Yancey produced to Defendants eleven (11) documents over which Defendant IRA Services, Inc. has asserted attorney‐client privilege and work product protection. IRA Services identified the eleven documents on a privilege log, and requested that Yancey return them. Yancey re...

Excerpt: ...s is denied. A. The Motion Is Untimely. Discovery motions must be heard no later than 15 days before the initial date set for trial. (Code of Civ. Proc. § 2024.20, subd. (a).) The initial trial date was June 4, 2020. The matter was continued to July 27, 2020 and again to September 21, 2020. Both continuances specified that all discovery deadlines would be based on the new trial date. Based on the September 21, 2020 trial date, the deadline to he...

Excerpt: ...al pursuant to the terms of their insurance contract as mandated by Insurance Code § 2071, the appraisal would be mandatory. See Doan v. State Farm Gen. Ins. Co. (2011) 195 CalApp.4th 1082, 1093. The question for this motion is whether the Court must grant a request made after the Plaintiffs filed a lawsuit and litigated it for a year, including conducting discovery and holding an Informal Discovery Conferences with the Court. The parties have n...

Excerpt: ...lationship to an insured – in this case, Defendant MIS – can be liable to the insured for a breach of the implied covenant of good faith and fair dealing. This issue was addressed in Tran v. Farmers Group, Inc. (2002) 104 Cal.App.4th 1202. The parties disagree, however, with respect to whether the decision in Tran applies to the facts of this case. In Tran, an insured brought an action against attorneys‐in‐fact of a reciprocal insurer/int...

Excerpt: ...d be characterized as an argument based more on semantics than substance. However, the Court sustains the Demurrer with leave to amend, for the following reasons. First, while various California courts have disagreed on this point, more recent California Supreme Court cases have concluded that “unjust enrichment” is not a proper cause of action, at least where the claim can be re‐ stated as a “quasi‐contract” claim that seeks “resti...

Excerpt: ...facts and supporting evidence establishes a prima facie showing that Defendant CHICAGO TITLE did not breach any duty that it owed to Plaintiff. Plaintiff has not demonstrated that a triable issue of material fact exists. Escrow instructions govern the rights and liabilities of the parties and the escrow holder. The parties are entitled to only the performance that is provided in their instructions, and the escrow holder is obligated to perform on...

Excerpt: ...pecific personal jurisdiction over them, claiming they do not have the necessary minimum contacts with this forum. According to Defendants, “the Complaint is devoid of any facts that establish the Lewiners ‘purposefully availed themselves' of California's benefits, or that the controversy is related to any of the Lewiners' extremely limited contacts with California.” MPA, p.3. However, Plaintiffs' verified Complaint alleges that Plaintiff I...

Excerpt: ...rty as a “deposit” toward arbitration costs. BUTTE has less than that amount in cash. The cases of Roldan v. Callahan & Blaine (2013) 219 Cal. App. 4th 87 and Weiler v. Marcus & Millichap Real Estate Inv. Servs., Inc. (2018) 22 Cal. App. 5th 970 are controlling. [When] a party who has engaged in arbitration in good faith is unable to afford to continue in such a forum, that party may seek relief from the superior court. If sufficient evidence...

Excerpt: ...First Cause of Action ‐ Fraud The Demurrer to Cross‐ Complainant's First Cause of Action for fraud is OVERRULED. The Cross‐Complaint alleges fraud by intentional misrepresentation and concealment. Where a fraud claim is properly plead on any legal theory, a Demurrer must be overruled. Viewing the allegations as a whole, the Cross‐Complaint adequately pleads a claim for fraud by intentional misrepresentation and/or concealment. It alleges ...

Excerpt: ...ttachment may be issued, (2) plaintiff has established the probable validity of the claim, (3) the attachment is not sought for any purpose other than to secure recovery on the claim, and (4) the amount to be secured is greater than zero. (See C.C.P. §484.090.) Except as otherwise provided by statute, a claim is one upon which an attachment may be issued: (1) in an action on a claim or claims for money, (2) based upon a contract, express or impl...

Excerpt: ... To demonstrate substantial compliance with the contractor's licensure requirements, Plaintiff De Bibo must show he (1) had been duly licensed as a contractor in this state prior to the performance of the act or contract, (2) acted reasonably and in good faith to maintain proper licensure, and (3) acted promptly and in good faith to remedy the failure to comply with the licensure requirements upon learning of the failure. Application of the subst...

Excerpt: ...on of Bus. & Prof. Code § 7031(e), and the doctrine of substantial compliance, to the undisputed facts. To demonstrate substantial compliance with the contractor's licensure requirements, Plaintiff De Bibo must show he (1) had been duly licensed as a contractor in this state prior to the performance of the act or contract, (2) acted reasonably and in good faith to maintain proper licensure, and (3) acted promptly and in good faith to remedy the ...

Excerpt: ... only to the default judgment, Defendants' motion also seeks to set aside the default. See Mot. at 8:11‐14. Under Code of Civil Procedure section 473.5, relief based on lack of actual notice must be sought within 2 years of the default or 180 days after service of a written notice that the default has been entered, whichever is earlier. (C.C.P. section 473.5(a).) There is no time limit on a motion for relief under Code of Civil Procedure sectio...

Excerpt: ...tion for Summary Adjudication to the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Causes of Action, is DENIED. On a motion for summary adjudication, a defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code of Civ. Proc. § 437c(p...

Excerpt: ...ration and Proposed Order. The court starts with the presumption that court records are open unless confidentiality is required by law. (See Cal. Court Rule 2.550(c).) A court may order that a record be filed under seal if it expressly finds facts establishing that: (1) there exists an overriding interest that overcomes the right of public access to the record; (2) the overriding interest supports sealing the record; (3) a substantial probability...

Excerpt: ... seventh and eighth causes of action with prejudice on September 23, 2020. Thus, Defendant's motion for summary judgment is moot as to those claims. First Cause of Action – Wrongful Constructive Termination As to the First Cause of Action for “wrongful constructive termination,” Plaintiff must show that he resigned as a result of intolerable working conditions, and that those working conditions violated public policy. (See CACI No. 2432.) D...

Excerpt: ...im of newly discovered evidence, Plaintiff notes that, just prior to the Court's ruling granting Dane's motion for summary judgment, Frederick Tate, a Target employee, testified at his deposition that Dane sent a representative to Target on a quarterly basis in 2016 to perform “preventative maintenance” on the smartKART shopping carts. According to Plaintiff, this evidence suggests that Dane did, in fact, have possession and control over the ...

Excerpt: ...k of Am., N.A. (2015) 243 Cal. App. 4th 1293, 1305–06 [tender not required when claim is based on allegations that Defendant foreclosed during time that plaintiff was seeking loan modification].) B. First Cause of Action (Wrongful Foreclosure) Demurrer to the first cause of action is sustained. An element of the claim for wrongful foreclosure is that the foreclosure sale occurred. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4t...

Excerpt: ...gument does not address why the Complaint does not state facts sufficient to constitute a cause of action for breach of fiduciary duty, unlawful use of trade secrets, or breach of contract, nor for intentional/negligent interference with economic prospects, or IIED/NIED. Defendant has not addressed whether the listing of names in his complaint and first amended complaint in the separate action violates specific fiduciary duties without violating ...

Excerpt: ...to state a valid cause of action, and is uncertain. Code Civ. Proc. §§ 430.10(e) and (f). In general, the Court takes a liberal approach with respect to permitting amendments to pleadings, particularly where, as here, no prior Demurrer has been filed. It is normally Plaintiff's burden, however, to show that a reasonable possibility exists that the defects in the Complaint can be cured by amendment. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Tor...

Excerpt: ...an agreement between the parties to arbitrate the claims alleged in the Complaint. (See C.C.P. § 1281.2.) Plaintiff Darlene Ipsen, by and through her Successor‐in‐ Interest Diane Berg (“Plaintiff”), asserts that her claims should not be ordered to arbitration because Kardosh is not a party to the arbitration agreement, and therefore her claims against Kardosh are not subject to arbitration. The arbitration agreement however, provides tha...

Excerpt: ...uest for judicial notice. The motion is DENIED to the extent it is based on the sham pleading doctrine. The argument is that Edwin Blue's deposition testimony is inconsistent with allegations in the complaint, which makes the cross‐complaint a sham pleading. This argument lacks merit. The Court GRANTS Yancey's request for judicial notice of the Deposition Transcript of Edwin Blue, taken September 20, 2019. However, “although the existence of ...

Excerpt: ...s documents granting authority to execute the documents in its chain of title.” MPA, p.3. Defendants also seek documents “pertaining to any title insurance, the creation and administration of the trust (Trust) of which US Bank‐CSFB alleges it is trustee, and a conflicting assignment of the Deed of Trust and underlying note to a separate trust for which U.S. Bank also claims to be trustee.” Id., p.4. According to Defendants, “each of the...

Excerpt: ..., Plaintiff Yancey served Defendants/Cross‐Complainants with several sets of Requests for Production of Documents (RFPs), which apparently sought, collectively, over 250 categories of documents. It appears that Defendants have served only objections to all of Yancey's RFPs. That is, it appears Defendants have not agreed, in any of their RFP responses, to produce any of the requested documents. However, that fact does not tell the whole story, b...

Excerpt: ...ute of limitations grounds is OVERRULED. The face of the ACC does not show that these causes of action are time‐barred. The demurrer to the eleventh through seventeenth causes of action on the ground of the sham pleading doctrine is overruled. SVP contends that statements Edwin Blue made in his deposition testimony conflicts with allegations in the ACC. However, “although the existence of statements contained in a deposition transcript filed ...

Excerpt: ... to amend. The Cross‐complaint is not time‐barred, but the Second Amended Complaint fails to sufficiently allege a valid liquidated damages clause. A. Tennessee's Six‐Year Statute of Limitations Applies to this Action. 1. Tennessee Has a Substantial Relationship with the Parties The initial question is whether (1) the chosen state has a substantial relationship to the parties or their transaction, or (2) there is any other reasonable basis ...

Excerpt: ...oceedings pursuant to the parties' Arbitration Agreement. California law has specific rules for arbitration involving skilled nursing facilities. Health & Safety Code § 1599.81. Plaintiff does not dispute the parties entered into an Arbitration Agreement. Plaintiff contends, however, that (1) as a result of pain medication he was taking at the time of entry into the Agreement, he lacked sufficient mental capacity to form a valid agreement; (2) b...

Excerpt: ... is DENIED as to Defendant CLEE. The evidence establishes that Defendant CLEE is a suspended corporation. Wu dec., Ex. C. As a suspended corporation, Defendant CLEE cannot seek relief in this action. See Timberline, Inc. v. Jaisinghani, 54 Cal. App. 4th 1361, 1365 (1997) (“Except for filing an application for tax‐exempt status or amending the articles of incorporation to change the corporate name, a suspended corporation is disqualified from ...

Excerpt: ...California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Super...

Excerpt: ...n, as required by CCP section 435.5(a)(3), showing that the parties met and conferred, in person or by telephone, for the purpose of determining whether an agreement could be reached to resolve the objections raised in this Motion. Defendant's counsel, Michael Ayzen, provides a declaration that he sent an email to Plaintiff's counsel; however, the parties are to meet and confer, in person or by telephone. Further, Mr. Ayzen's statements regarding...

Excerpt: ...0.10(e) on the grounds that the First Amended Complaint does not sufficiently allege an independent wrongful act. Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130 (“Ixchel”); .Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 1 Cal.4th 376, 393. The Court concludes that the holding of Ixcel applies in this case and requires that Plaintiff allege an independent wrongful act for each of the first three causes of action. Ixchel at 1...